Tuesday, 14 March 2017

Headscarf bans at work: explaining the ECJ rulings

Professor Steve Peers

When can employers ban their
staff from wearing headscarves? Today’s rulings of the ECJ have attracted a lot
of attention, some of it confused. There have been previous posts on this blog about
the background
to the cases, and about the non-binding opinions
of Advocates-General, and there will hopefully be further more analytical
pieces about today’s judgments to come. But this post is a short explanation of
the rulings to clear up any confusion.

Background

The EU has long had laws on sex
discrimination, and discrimination regarding EU citizens on grounds of
nationality. Since 2000, it has also had laws against race discrimination and also
a ‘framework
directive’ against discrimination at work on grounds of disability, age,
sexual orientation or religion. The ECJ has often been called upon to rule on
the first three of those grounds, but today’s two judgments (G4S
v Achbita and Bougnaoui)
are the first time it has been asked to rule on non-discrimination at work on
religious grounds.

EU law does not generally apply
to other aspects of religion, except that EU law on asylum applies to people
who have been persecuted on religious grounds. So today’s judgments are not
relevant as regards regulating religion in education, for instance.

It should also be noted that the European
Convention on Human Rights (ECHR) protects the freedom of religion. The European Court of Human Rights – a separate
body – has previously ruled on how that freedom applies in the workplace,
concluding that in some cases employers must allow employees who wish to wear
religious symbols (see Eweida v UK,
for example).

The rulings

The G4S ruling is the more significant of the two cases, in which the
ECJ’s reasoning is most fully set out. First the Court rules that clothing worn
for religious reasons is an aspect of religious belief. Then it concludes that
there was no direct discrimination (ie discrimination purely on religious
grounds) against Ms. Achbita, who was not allowed to wear a headscarf when
dealing with customers, because her employer had a general ban on any employee display of religious or
political belief.

Next, the ECJ ruled on whether
there was any indirect discrimination
(ie discrimination not on religious
grounds, but which affected people of a particular religion more than others).
Such discrimination can be ‘objectively justified by a legitimate aim…if the
means of achieving that aim are appropriate and necessary.’ In the Court’s
view, the national court which had asked the ECJ these questions should
consider that an employer’s ‘neutrality’ policy regarding customers was ‘legitimate’,
and was part of its ‘freedom to conduct a business’.

However, such as policy had to be
‘systematic’ and ‘undifferentiated’ as regards different beliefs. It also
should be considered whether it was limited to those workers who ‘interact with
customers’, and whether it would have been possible to reassign the employee to
a different role without ‘visual contact’ with customers, without the employer
taking on an extra burden.

In the second case, the Court
ruled that employers could not discriminate due to a customer request that
employees not wear a headscarf. This was
not ‘a genuine and determining occupational requirement’ that could justify
reserving a job to those who did not wear headscarves.

Summary

The ECJ’s rulings must be applied
by the two national courts that requested it to rule. They are also binding
more generally on the courts of all 28 EU Member States.

In principle the rulings mean
that employers may ban employees from
wearing headscarves, but only in
certain cases. First of all, the cases only concern customer-facing employees,
on condition that the employer has a 'neutrality' policy. The ECJ was not asked
to rule on other groups of employees,
but its rulings indicate that it would be more difficult, if not impossible, to
justify bans in those cases. Nor was it asked to clarify further what a ‘customer-facing’
employee is exactly.

A neutrality policy mean an employer
also has to ban other religious or political symbols worn by customer-facing
employees. So no kippas, no crucifixes, no turbans - and no icons of Richard Dawkins either. This could be rather awkward in light of the human rights case law
referred to above, which says wearing crucifixes (for instance) is sometimes an
aspect of an employee's right to manifest her freedom of religion.

There is a thin line between
saying that employee headscarves can't be banned just because customers ask for
it on the one hand, and allowing employers to ban such clothing in effect due
to anticipation of customer reaction.
In practice this might prove something of a legal fiction.

The bottom line is that today’s
judgments do not constitute a 'workplace headscarf ban', but merely permit
employers to establish such a ban – subject to limits which might prove
difficult to comply with in practice.

13 comments:

the bar for the justification of the (indirect) discrimination seems rather low though. A simple (unilateral) company policy is sufficient to ban all religious symbols for all customer-facing employees.

The impression is that the freedom to conduct a business simply trumps the freedom of religion, quite different from the ECHR approach in Eweida.

That's expected considering the nature of EU law as opposed to HR Law. EU law is first and foremost about trade and economy, it's expected that they would apply proportionality in a way that still benefits the company.

There's no further clarification. Would an employer really have to ban staff from wearing pro-vegetarian badges, for instance? Since the EU law is about non-discrimination on grounds of religion, it would have made more sense to refer to a neutrality policy relating to religious belief.

By its very nature, a ban on religious symbols or dress discriminates against a few religions that expressly require this, as compared to others that don't. For example the hejab (Islam) and kirpans (Sikhism). In effect, it allows employers to ban workers who believe and practise their religions, if this requires certain symbols, dress or hair to be manifested by the practitioner. The only safe worker is one with no views, and no religion, or one who is too afraid to display it! Seriously at odds with ECHR rights. Perhaps a spot of reality and religious training required at the ECJ?

Most religions have a symbol or clothing of some sort that *some* people believe must be worn - but conversely some Muslim women don't wear the hejab and some Sikhs don't wear the kirpan. If the argument is direct discrimination the comparator is then athiests and agnostics. Does that fit with the logic of the Directive I wonder?

It is my understanding that strictly speaking, Islam requires its adherents to dress modestly. How that is interpreted is an issue that includes both cultural and personal aspects (cf. also the wide variety of headscarves worn by those who do wear them and statements such as this that illustrate that the requirement for a hijab is not universal in Islam: http://www.irfi.org/articles/articles_351_400/quran_does_not_mandate_hijab.htm ). The actual question thus seems to be more in the vein of whether the ECJ is really the proper authority to declare when someone has to feel they are dressed modestly.

That wasn't what the ECJ was asked, or what it addressed in its judgment. Since the EU adopted a law on religious discrimination in employment, this issue was bound to come up sooner or later when interpreting that law, and the ECJ is there as a forum for interpreting EU laws.

It seems to me that there are some differences between the present cases and Eweida. In Eweida, British Airways allowed "items of clothing considered by British Airways to be mandatory in certain religions and which could not be concealed under the uniform". Therefore authorisation was given to male Sikh employees to wear a dark blue or white turban and to display the Sikh bracelet in summer if they obtained authorisation to wear a short‑sleeved shirt. Female Muslim ground staff members were authorised to wear hijab (headscarves) in British Airways approved colours. The fact that there was a specific treatment for certain items of clothing may have somehow contributed to make BA's policy inconsistent.

What strikes me though is that the ECJ, unlike the ECtHR in Eweida, seems to focus only on the "discrimination" aspect and not so much on the "freedom of religion" aspects. In Eweida, the ECtHR insists on the fact that "Ms Eweida’s desire to manifest her religious belief (...) is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others". Since the ECJ "only" assesses the existence of an indirect discrimination, it seems to alter the outcome of the proportionality check.

That's because the EU and the ECtHR are different bodies, guided by different principles. While the former is a court of HR and interprets the convention, the ECJ rules under the treaties and it's own case law, having regard to HR, but does not have to give primacy to them, they must always strike a balancing act between freedom and the ability to trade and perform economic activities